Sturkie v. Ballenger Corp.

Littlejohn, Justice

(dissenting) :

I respectfully dissent and would reverse the lower court.

There is no contention that claimant has suffered an occupational disease.

On or about August 1, 1972, the claimant, an employee of the Ballenger Corporation, went to Puerto Rico to continue his occupation of several years as a truck driver. He remained on the job without incident until October 25, 1972, when he blacked out on the job. His work was that of driving a cement, rotating, cylinder type, delivery truck. The claimant described his duties as driving the truck to the bulk plant, waiting in line for loading, driving the truck to the job and dumping the cement by way of a hydraulic operation. No heavy lifting was normally required.

He testified that on October 25, 1972, he just passed out. He was not doing anything unusual at the time. He had been running a high fever. The weather in Puerto Rico was described as hot, humid and rainy. He was hospitalized and seen by Dr. Jiminez, who treated him for “an acute asthmatic attack.” In response to counsel’s question, Dr. Jiminez testified as follows:

“Q. All right, sir. Now do you have an opinion as to what caused Mr. Sturkie’s severe inflammation of the entire respiratory tract ?

*544“A. I think it was caused by a combination of three factors — bacteria, allergies, and environmental, due to the work he was doing.”

On November 14, he returned to South Carolina and was hospitalized in Lexington and was seen by Dr. Vernon. His diagnosis was emphysema. The claimant gave to Dr. Vernon a history of being a heavy cigarette smoker and of having experienced a shortness of breath for approximately two years.

On an application for insurance benefits filed by Dr. Vernon’s office, the claimant stated that his ailment was not connected with his employment.

The single hearing commissioner issued an order finding that the claimant collapsed on the job on October 25, 1972, suffering from severe inflammation of the respiratory tract ; said condition being caused and/or triggered by the exposure to such environmental and working conditions and thus being accidental within the meaning of the law.

The full commission affirmed without elaboration; the circuit court did likewise.

We are called upon to determine whether the record supports the finding that the claimant experienced an accident arising out of and in the course of his employment. This Court has defined the word “accident” on many occasions. An accepted definition is “an unlooked for and untoward event which is not expected or designed by the person who suffered an injury.” It is also defined as meaning “an occurrence which is neither expected, designed, nor intentionally caused by a workman.” It does not include a disease unless the disease results naturally and unavoidably from an accident.

A disease is not compensable unless it is caused by an accident on the job. Section 72-14, Code of Laws of South Carolina (1962) reads in part as follows:

“Injury and personal injury. — 'Injury’ and Personal injury’ shall mean only injury by accident arising out of and *545in the course of the employment and shall not include a disease in any form, except when it results naturally amd unavoidably from the accident . . (Emphasis added.)

There can be no doubt but that the claimant has emphysema, but the evidence does not support the inference that an on-the-job accident caused it. He was under no particular strain or stress in his work. There was no overexertion. His condition is not the result of any specific happening or event which occurred at any particular time, place or date, or the result of cumulative effect of a series of minor incidents occurring during the employment. His condition cannot be traced to his employment as a contributing cause.

Neither the record nor the order of the single commissioner, nor of the full commission, nor of the lower court, pinpoints the happening amounting to an accident.

In my view, the argument of counsel that working under Puerto Rican weather conditions brought about the injury is without logic. The claimant was subjected to the same weather and environment conditions as all Puerto Ricans and other persons living on the island. If an injury results from conditions common to the public, there can be no accident.

The only reasonable inference to be drawn from the whole of the showing in this case is that this claimant had been a heavy smoker for a long time and had been experiencing shortness of breath for some two years. It is common knowledge that emphysema is insidious in its approach and is aggravated and/or caused by heavy smoking.

Reliance upon Hiers v. Brunson, 221 S. C. 212, 70 S. E. (2d) 211 (1952) is misplaced. Hiers, while in a weakened condition and laden with a bad cold, on a cold, raw, rainy day, went upon a roof on February 20 and worked approximately 45 minutes. This triggered pneumonia, from which he died. The medical testimony substantiated the 45 minute exposure as a contributing cause to the claimant’s influenza, double pneumonia and pleurisy.

*546The majority opinion would extend Hiers. In the case before us there was simply no accident as contemplated by the Workmen’s Compensation Law. It is apparent that the claimant had emphysema and that his emphysema reached a crisis while he was in Puerto Rico; it is equally apparent that his emphysema did not arise out of and in the course of his employment.

This disposition of the case finds support in Richardson v. Wellman Combing Co., 233 S. C. 454, 105 S. E. (2d) 602 (1958); Burnett v. Appleton Co., 208 S. C. 53, 37 S. E. (2d) 269 (1946); Radcliffe v. Southern Aviation School, 209 S. C. 411, 40 S. E. (2d) 626 (1946), and Miller v. Springs Cotton Mills, 225 S. C. 326, 82 S. E. (2d) 458 (1954).